Daya Ram vs State of U.P. and Others

The present special appeal has been filed against the judgment and order dated 7.3.2011 passed by the learned Single Judge whereby the writ petition filed by the Appellant challenging the order of transfer has been dismissed.

We have heard learned Counsel for the Appellant Sri N.L. Srivastava, Sri Vimal Chandra Mishra, learned Counsel appearing for Respondent No. 4, learned standing counsel for the Respondents No. 1 to 5 and 7 and Sri Ashok Khare learned senior counsel assisted by Sri V.S. Gupta learned Counsel appearing on behalf of Respondent No. 6 and perused the impugned judgment and order dated 7.3.2011 passed by the learned Single Judge giving rise to the present appeal, grounds taken in the memo of appeal and the documents filed along with it.

Sri N.L. Srivastava learned Counsel for the Appellant has submitted that the learned Single Judge has committed an error in dismissing the writ petition by treating the Appellant as stenographer whereas the facts of the matter is that the Appellant is senior clerk as it is clear from the Annexure 4 and 5 to the writ petition.

Learned senior counsel Sri Ashok Khare submitted that before the learned Single Judge, the Appellant counsel has stated that the Appellant is stenographer and therefore the learned Single Judge had proceeded to decide the matter on the basis that he is stenographer and not a senior clerk.

From the impugned judgment and order, we find no such statement has been made by the Appellant as no such facts has been recorded by the learned Single Judge. However the matter had proceeded on the basis of the record.

From perusal of the Annexure 4 to the writ petition, we find that the designation of the Appellant has been as senior clerk (adjusted stenographer). What is the implication of this designation, has to be looked into.

As the impugned judgment and order passed by the learned Single Judge had proceeded that the Appellant is stenographer, we deem it proper to set aside the order dated 7.3.2011. The impugned judgment and order dated 7.3.2011 is set aside and the matter is restored to the file with request to the learned Single Judge to decide the matter afresh in accordance with law. The matter shall be listed before the learned Single Judge on 18.4.2011. Till then status quo as on today shall be maintained by the Respondent parties on the post in question.

The appeal is disposed of as above. No costs.